EASEMENTS: What are they and how they affect real property

Easements regularly impact all types of real estate transactions and I am sure many of our readers have run into easement related issues in one form or another along the way. Determining the scope and validity of an easement often presents issues to parties to a real estate transaction. At Berlin Patten Ebling, we routinely get questions relating to the creation, scope, and termination of easements.

So what is an easement? To put simply, an easement is a right of one party to exercise a limited form of possession and/or use of the property of another party. An easement can be affirmative, where a party is able to use the property of another party for a limited purpose, or an easement may be negative, where a party can prevent another party from using their own property in certain ways. Any property subject to an easement is known as a “burdened property” and any property benefited by the easement is known as the “benefited property.”

Additionally, easements can be held in different ways. For example, an “easement appurtenant” runs with the land, which means that the easement would pass to the next owner of the property benefited by the easement. In contrast, an “easement in gross” is held by a party in his or her personal capacity, meaning that it does not transfer to the next property owner of the benefited property. However, it will remain on the burdened property after the transfer of the burdened property.

When you buy a property with an easement, you take the property subject to the easement, which means that you, as the property owner, will have to accommodate the easement and the benefited owner or property. For instance, in the common case of a shared driveway, the burdened property could not block the access of the benefited owner or property by building a fence that restricted the benefited owner’s use of the driveway if an easement is in place. This is so even if the shared driveway is located entirely on burdened property!

Significantly, it is imperative for parties to a transaction to understand what easements are in place and/or are necessary to establish when buying real property for a particular purpose. These considerations become even more important when the property owner plans to build and/or add anything to property. In order to properly evaluate what easements are in place, one would need to consult prior deeds, plats, surveys and other documents where easements would be recorded or depicted to determine the nature and scope of any easements that benefit and/or burden the property. Of course, this process becomes considerably easier with the assistance of a seasoned real estate attorney.

As always, we recommend consulting with your local real estate attorney should you have any questions as to easements and the benefit and/or burden they may place on a particular property.

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

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Berlin Patten Ebling, PLLC is one of Southwest Florida's few law firms concentrating on legal, settlement and litigation services specifically focused on real estate and land development. We believe the key to an effective real estate transaction is extreme attention to detail, exemplary service, and frequent and continued contact with all parties. For more information or to contact us, please visit www.berlinpatten.com

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